Corporate Management of the Theresian Carmelite Sisters of Ernakulam v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933** ## **WP(C).No. 38081 of 2010(I)** ## **-----------------------** ## **PETITIONER :** - **---------------------** **CORPORATE MANAGEMENT OF THE THERESIAN CARMELITE SISTERS OF ERNAKULAM, ST.THERESA'S CONVENT, ERNAKULAM, COCHIN-11, REPRESENTED BY THE CORPORATE MANAGER.** **BY ADVS. SRI.ABRAHAM VAKKANAL, SENIOR ADVOCATE SRI.PAUL ABRAHAM VAKKANAL SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS** **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, PIN -695014.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM, PIN -682030.** **4. THE DISTRICT EDUCATION OFFICER, ERNAKULAM, PIN -682016.** **5. RANI.P.JOHN, HSA (SS), (UNDER ORDERS OF DISMISSAL FROM SERVICE), ST.ANTONY'S HIGH SCHOOL, KACHERIPADY, ERNAKULAM, PIN-682018.** **R1 TO R4 BY GOVT. PLEADER SMT. NISHA BOSE R5 BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/10/2011, ALONG WITH WPC NO. 38187 OF 2010 , THE COURT ON 12/10/2011 DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 38081 of 2010(I)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1**|**: **|**COPY OF THE ORDER ISSUED BY NATIONAL COMMISSION FOR**| |---|---|---| |||**MINORITY EDUCATIONAL INSTITUTIONS DATED 22-1-2010.**| |**EXT.P1(a)**|**: **|**COPY OF THE SUSPENSION ORDER DATED 02-08-2001.**| |**EXT.P2**|**: **|**COPY OF THE DIVISION BENCH JUDGMENT DATED 7-3-2008.**| |**EXT.P3**|**: **|**COPY OF THE ENQUIRY REPORT OF THE 4TH RESPONDENT DATED**| |||**1-9-2008.**| |**EXT.P3(a)**|**: **|**COPY OF THE FINAL DECREE IN OP.NO. 1167/1996 BY THE HON'BLE**| |||**HIGH COURT DATED 25-9-1996.**| |**EXT.P3(b)**|**: **|**COPY OF CERTIFICATE FROM HOSPITAL DATED 7-8-2001.**| |**EXT.P4**|**: **|**COPY OF THE SHOW CAUSE NOTICE DATED 8-9-2008.**| |**EXT.P5**|**: **|**COPY OF THE ORDER NO. B1-24566/2008 DATED 16-12-2008.**| |**EXT.P6**|**: **|**COPY OF THE ORDER NO. TS/DP/2009 DATED 27-02-2009.**| |**EXT.P7**|**: **|**COPY OF THE APPEAL BEFORE THE 2ND RESPONDENT SENT TO THE**| |||**PETITIONER BY 5TH RESPONDENT DATED 25-3-2009.**| |**EXT.P8**||**COPY OF THE ORDER NO. VI/45207/09/DPI DATED 24-08-2009.**| |**EXT.P9**||**COPY OF THE REVISION PETITION DATED 10-10-2009.**| |**EXT.P10**||**COPY OF THE HEARING NOTE DATED 19-4-2010.**| |**EXT.P10(a)**||**COPY OF THE HEARING NOTE DATED 14-5-2010.**| |**EXT.P11**||**COPY OF THE G.O.(RT) NO. 5430/2010/G.EDN DATED 02-12-2010.**| |**EXT.P12**||**COPY OF THE LETTER DATED 25-04-2008.**| |**EXT.P12(a)**||**COPY OF THE LETTER DATED 08-05-2008.**| |**EXT.P13**||**COPY OF THE LETTER DATED 23-05-2008.**| |||**(Contd...)**| ## **WP(C).No. 38081 of 2010(I)** |**EXT.P14**||**COPY OF**|**THE REPLY DATED 07-06-2008.**| |---|---|---|---| |**EXT.P15**||**COPY OF**|**THE LETTER DATED 29-05-2008.**| |**EXT.P16**||**COPY OF**|**THE LETTER TO THE 5TH RESPONDENT DATED 12-06-2008.**| |**EXT.P16(a)**||**COPY OF**|**THE LETTER TO THE DEO DATED 13-06-2008.**| |**EXT.P17**||**COPY OF**|**THE APPLICATION DATED 10-07-2008.**| |**EXT.P18**||**COPY OF**|**THE LETTER DATED 10-07-2008.**| |**EXT.P19**||**COPY OF**|**THE LETTER DATED 15-10-2008.**| |**EXT.P20**||**COPY OF**|**THE LETTER DATED 18-02-2009.**| |**EXT.P21**||**COPY OF**|**THE LETTER DATED 25-10-1996.**| |**EXT.P21(a)**||**TYPED COPY OF EXHIBIT P-21 DATED 25-10-1996.**|| |**EXT.P22**||**COPY OF**|**THE PETITION DATED 30-07-2001.**| |**EXT.P23**||**COPY OF**|**THE PETITION DATED 24-08-2001.**| |**EXT.P24**||**COPY OF**|**THE COMPLAINT DATED 19-07-2001.**| |**EXT.P25**||**COPY OF**|**THE COMPLAINT DATED 26-11-1999.**| |**EXT.P26**||**COPY OF**|**THE COMPLAINT DATED 20-06-2001.**| |**RESPONDENT'S **||**EXHIBITS**<br>|**:**| |**EXT.R5(a)**|**: **|**COPY OF**|**THE ORDER OF THE MANAGER OF THE SCHOOL DATED**| |||**02-08-2001.**|| |**EXT.R5(b)**|**: **|**COPY OF THE ORDER NO. B2-1059/01 OF THE DISTRICT**|| |||**EDUCATIONAL OFFICER DATED 09-08-2001.**|| |**EXT.R5(c)**|**: **|**COPY OF**|**THE ORDER OF THE MANAGER OF THE SCHOOL DATED**| |||**14-08-2001.**|| **(Contd...)** ## **WP(C).No. 38081 of 2010(I)** **EXT.R5(d) COPY OF THE ENQUIRY REPORT OF THE DIST. EDUCATIONAL OFFICER DATED 30-03-2002.** **EXT.R5(e) COPY OF THE ORDER NO. TS/DP/2002 OF THE MANAGER DATED 11-09-2002. EXT.R5(f) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO. 8054/2003-H DATED 23-8-2007. EXT.R5(g) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. NO. 493/2008 DATED 7-03-2008. EXT.R5(h) COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS DATED 27-08-2001. EXT.R5(i) COPY OF THE REPLY OF THE 5TH RESPONDENT DATED 07-06-2008. EXT.R5(j) COPY OF THE COVER SHOWING REFUSAL OF THE MANAGER DATED 28-04-2008. EXT.R5(k) COPY OF THE COVER SHOWING REJECTED BY THE MANAGER DATED 05-05-2008. EXT.R5(l) COPY OF THE REPRESENTATION OF THE 5TH RESPONDENT BEFORE THE DIST. EDUCATIONAL OFFICER DATED 05-07-2008. EXT.R5(m) COPY OF THE REPRESENTATION OF THE 5TH RESPONDENT BEFORE THE DISTRICT EDUCATIONAL OFFICER DATED 28-06-2008. EXT.R5(n) COPY OF THE LETTER NO. B2-10597/07 OF THE DIST. EDL. OFFICER DATED 04-07-2008. EXT.R5(o) COPY OF THE COMMUNICATION OF THE 5TH RESPONDENT DATED 10-07-2008. EXT.R5(p) COPY OF THE ENQUIRY REPORT OF THE DIST. EDL. OFFICER DATED 10/7/2008, 22-07-2008 23-07-2008. EXT.R5(q) COPY OF THE SHOW CAUSE OF THE MANAGER DATED 08-09-2008. EXT.R5(r) COPY OF THE REPRESENTATION SUBMITTED BEFORE MANAGER DATED 28-09-2008.** **(Contd...)** ## **WP(C).No. 38081 of 2010(I)** **EXT.R5(s) COPY OF THE HEARING NOTES OF THE 5TH RESPONDENT DATED 28-11-2008. EXT.R5(t) COPY OF THE ORDER NO. B1-24566/2008 OF THE DY. DIRECTOR DATED 16-12-2008. EXT.R5(u) COPY OF THE ORDER NO. TS/DP/2009 OF THE MANAGER DATED 27-02-2009. EXT.R5(v) COPY OF THE CERTIFICATE OF THE PRINCIPAL, ST. ANTONY'S H SCHOOL DATED 12-12-2000. EXT.R5(w) COPY OF THE CERTIFICATE OF THE PRINCIPAL, ST. ANTONY'S H SCHOOL DATED NIL. EXT.R5(x) COPY OF THE CERTIFICATE ISSUED BY THE HEADMISTRESS OF ST. JOSEPH'S C.G. HIGH SCHOOL DATED 16-06-1995. EXT.R5(y) COPY OF THE CERTIFICATE ISSUED BY THE DEPUTY DIRECTOR OF EDN. DATED 16-12-2000. EXT.R5(z) COPY OF THE SPECIAL CERTIFICATE ISSUED BY THE UNITED SCHOOLS ORGANIZATION OF INDIA DATED 30-11-1998. EXT.R5(aa) COPY OF THE CERTIFICATE ISSUED BY THE HEADMISTRESS OF O.L.F. GIRLS HIGH SHOOL, MATHILAKAM DATED 01-01-1991. EXT.R5(ab) COPY OF THE CERTIFICATE OF THE PTA OF ST. ANTONY'S HSS DATED NIL. EXT.R5(ac) COPY OF THE LETTER OF THE LOTUS LEARNING PVT LTD DATED 19-10-2002. EXT.R5(ad) COPY OF THE LETTER OF ARCHBISHOP OF ERNAKULAM DATED 15-03-1994. EXT.R5(ae) COPY OF THE REPRESENTATION SUBMITTED BEFORE THE DIRECTOR OF PUBLIC INSTRUCTION DATED 30-07-2008. EXT.R5(af) COPY OF THE WITNESS STATEMENT DATED 10-8-2007, 10-7-2008, 30-6-2006, 22-7-2008, 23-7-2008.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos.38081 and 38187 of 2010** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 12th day of October, 2011.** ## **JUDGMENT** The proceedings of the Government produced as Ext.P11 in W.P.(C) NO.38081/2010, whereby the punishment imposed by the Management of dismissal from service of the fifth respondent has been converted as a punishment of barring of increments for two years with cumulative effect, is under challenge by the Management, the petitioner in the writ petition. In W.P.(C) No.38187/2010, the teacher seeks implementation of the same. 2. The disciplinary proceedings itself had started and has been pending for a period of more than 10 years by now. The petitioner management in W.P.(C) No.38081/2010 is having different schools and one of them is St. Antony's High School, Kacheripady, Ernakulam. It is averred in the writ petition that the school is a minority institution which is entitled to get protection under Article 30(1) of the Constitution of India. 3. The facts narrated below are based on the pleadings contained in W.P.(C) No.38081/2010. By Ext.P1(a) order dated 2.8.2011 the fifth respondent was placed under suspension. The District Educational Officer who conducted the enquiry after the Management issued the memo of 2 wpc nos.38081 & 38187 of 2010 charges and rejected her explanation, submitted his report with adverse findings against the fifth respondent. The same led to an order dated 11.9.2002 whereby the Management imposed the punishment of removal from service. Challenging the same on various grounds including gross violation of the principles of natural justice, the fifth respondent approached this Court by filing O.P. No. 8054/2003 which was disposed of by Ext.R5(f) judgment, produced along with the counter affidavit of the fifth respondent. This Court allowed the writ petition finding that the enquiry was conducted in violation of the principles of natural justice. There was a direction to reinstate her in service without backwages and the Management was directed to take steps to conduct a fresh enquiry as enjoined by law. In the Writ Appeal filed by the Management, which was disposed of by Ext.P2 judgment, the finding that the enquiry has been conducted in violation of the principles of natural justice, stands upheld. The Division Bench also directed completion of the disciplinary enquiry afresh. The fifth respondent was directed to be kept under suspension and the Division Bench fixed a period of six months for completing the enquiry and further directed that if the enquiry is not completed within six months from the date of receipt of a copy of the judgment, she should be reinstated in service, subject to the final outcome of the disciplinary proceedings. wpc nos.38081 & 38187 of 2010 3 4. The present proceedings started thereafter, when the Management again furnished the memo of charges on the fifth respondent. Finally, according to the petitioner, the enquiry was completed and Ext.P3 report was submitted by the District Educational Officer. Seven out of the ten charges were proved and a show cause memo was issued proposing the penalty of dismissal from service, as per Ext.P4, and finding that the reply submitted by the fifth respondent is unsatisfactory, the punishment of dismissal from service was imposed as per Ext.P6, after the third respondent granted permission for the same by Ext.P5 order. The fifth respondent challenged the same in appeal before the Director of Public Instruction, as per Ext.P7 which was rejected by Ext.P8. Ext.P9 is the revision petition filed by her before the Government and Ext.P11 is the resultant order passed by the Government in the revision petition. 5. Heard Shri Abraham Vakkanal, learned Senior Counsel for the petitioner, Shri Sajjad, learned counsel for the fifth respondent and learned Govt. Pleader Smt. Nisha Bose appearing for respondents 1 to 4. 6. Learned Senior Counsel for the petitioner mainly contended that the order passed by the Government is beyond the jurisdiction conferred under Rule 92 of Chapter XIV-A K.E.R. It is submitted that the findings contained in Ext.P11 are really unsupported by any cogent reasons and the 4 wpc nos.38081 & 38187 of 2010 same cannot be supported legally or factually. It is submitted that the finding that the enquiry was conducted violating the directions of this Court and the rules and procedure, is clearly vague and unsustainable. The Government actually relied upon the findings in the judgment Ext.R5(f) rendered in the writ petition filed by the fifth respondent which were not relevant for the purpose, as a fresh enquiry was conducted after the Writ Appeal was disposed of. It is pointed out that the Management has exercised the disciplinary powers after finding that the charges which have been proved, justify the punishment of dismissal from service. It is pointed out that charge Nos.9 and 10 are so serious and that the fifth respondent cannot be continued as a Teacher in the school. It is also pointed out that the decree of this Court in a divorce petition filed on the ground of adultery (Ext.P3(a)) was also relied upon by the Management to impose the punishment of dismissal and nothing is mentioned in Ext.P11 order about the same. It is pointed out that the conduct rules under Chapter XIV-B of K.E.R. also justifies the dismissal from service of the fifth respondent. It is further pointed out that the action of the fifth respondent in insulting the Principal and attacking her by pulling her scapular and hitting her on the belly, which is the 10[th] charge, was found proved along with the 9[th] charge which has the effect of publicly abusing the Headmistress. It is pointed wpc nos.38081 & 38187 of 2010 5 out that these two charges having been proved, they are sufficient for dismissing the fifth respondent from service. It is therefore submitted that the Government altered the punishment to a minor one, without even discussing th enquiry report and the findings thereon. It is pointed out that such a jurisdiction is not vested in the revisional authority. By referring to the details of the enquiry report and other steps taken in the enquiry, learned Senior Counsel submitted that there is no violation of the principles of natural justice, which has been found clearly by the Deputy Director and the Director of Public Instruction. It is therefore submitted that the Government has clearly gone wrong in finding that there has been violation of the principles of natural justice and the enquiry was conducted strictly in observance of the principles of natural justice and a retired senior officer of the Department was allowed as defence assistant. The witnesses were examined in her presence and they were allowed to be cross examined. In compliance of the direction of the Division Bench, the documents were furnished to the petitioner, but actually she did not take the opportunity to peruse the same. It is pointed out that she was trying to delay the conduct of the enquiry for enabling reinstatement in service, in the light of the direction issued by the Division Bench in Ext.P2 judgment that if the enquiry is not completed within six months from the date of receipt of a wpc nos.38081 & 38187 of 2010 6 copy of the judgment, she should be reinstated in service. It is pointed out that the order passed by the Government, therefore, cannot be supported at all. 7. Per contra, learned counsel for the fifth respondent and learned Government Pleader submitted that there had been violation of the principles of natural justice in the conduct of enquiry, which aspect was not examined by the lower authorities including the Director of Public Instruction. Learned counsel for the fifth respondent took me to the various aspects and submitted that even the perusal of the documents which had some bearing on the defence of the fifth respondent, was not allowed by the Management and the District Educational Officer, inspite of being alerted by the fifth respondent, did not allow an affective opportunity in the matter. It is pointed out that the chief examination of the witnesses was not in the presence of the fifth respondent. The written statement alone were being taken from the witnesses and the same itself vitiates the entire enquiry. Various other aspects were also pointed out. 8. Learned Govt. Pleader also, while, supporting the order passed by the Government, submitted that the view taken in Ext.P11 is a most plausible one on the facts and circumstances of the case. The proved charges cannot invite a punishment of dismissal from service. It is pointed wpc nos.38081 & 38187 of 2010 7 out that on certain charges even the Enquiry Officer was not sure and described them as appears to be proved. Therefore, it is submitted that the assessment of the various aspects led to the Government in altering the punishment to one of barring of two increments cumulatively. 9. Learned Senior Counsel for the petitioner relied upon various decisions of the Apex Court in support of his arguments. It was submitted that the power to be exercised by way of appellate jurisdiction and revisional jurisdiction are entirely different and the Government lacks power to review the evidence, re-assess the same and enter into findings different from that of the enquiry officer while exercising power under Rule 92. Support was also drawn from the decisions of the Apex Court in **The State of Kerala v. K.M. Charin Abdulla and Co.** (AIR 1965 SC 1586) and **Lachhman Dass v. Santokh Singh** {(1995) 4 SCC 201}. Learned Senior Counsel also relied upon the following decisions in support of the various arguments: **State of Punjab and others v. Ram Singh Ex. Constable** (AIR 1992 SC 2188), **Lilly Kurian v. University Appellate Tribunal and others** {(1997) 2 SCC 240}, **U.P. SRTC and others v. Ram Chandra Yadav** {(2000) 9 SCC 327}, **Mahindra and Mahindra Ltd. v. N.B. Narawade** {(2005) 3 SCC 134}, **Government of India and another v. George Philip** {(2006) 13 SCC 1}, **Chairman and Managing Director,** 8 wpc nos.38081 & 38187 of 2010 **V.S.P. and others v. Goparaju Sri Prabhakara Hari Babu** {(2008) 5 SCC 569} and **State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya** (2011 (4) SCALE 56). 10. The judgment of this Court Ext.R5(f) was in the context of violation of Rule 75 of Chapter XIV-A K.E.R. by the enquiry officer. It was found in para 20, by relying upon the decision of a Division Bench of this Court in **Radhamma v. Thulasi Bai** (2006 (3) KLT 909) that the mandatory procedure for conducting enquiry has been violated. The enquiry thus conducted was set aside in view of the fact that no list of witnesses were given to the fifth respondent, copies of documents were not furnished and the copies of documents relied upon by the enquiry officer, have not been shown to the fifth respondent. Accordingly, it was found that there was total violation of the principles of natural justice. 11. One of the points raised by the learned Senior Counsel for the petitioner in attacking the approach made by the Government in Ext.P11 is that by relying upon Ext.R5(f) judgment, the Government was of the view that the enquiry conducted is vitiated and is against sub-rule (6) of Rule 75 of Chapter XIV-A K.E.R. A reading of the order Ext.P11 shows that after referring to certain arguments of the parties, the Government referred to the 9 wpc nos.38081 & 38187 of 2010 judgment in W.P.(C) No.8054/2003 in the last paragraph of internal page 4 of Ext.P11. Thereafter, the following finding was rendered: “It is evident from the judgment dated 23.8.2007in O.P.No.8054/2003 filed by the petitioner before the Hon'ble High Court against the order of the District Educational Officer and the removal order of the manager that the enquiry conducted by the District Educational Officer is vitiated and against sub rule 6 of Rule 75 chapter XIV KER. The detailed and elaborative findings of Hon'ble High Court in the judgment dated 23.8.2007 is enlighting this. Thus the District Educational Officer's contentions do not stand in the eyes of law.” I find force in the submissions of the learned Senior Counsel for the petitioner that the above judgment could not have been relied upon. Evidently, the present punishment is not based on the enquiry report which was submitted by the District Educational Officer at the first instance. After the judgment in the said case which was affirmed on the merits of the matter by Ext.P2 judgment of the Division Bench, a fresh enquiry was conducted, admittedly and Ext.P3 is the copy of the report. In that view of the matter, a reference to the judgment in O.P.No.8053/2004 and the finding based on the same was clearly out of context and unwarranted. 12. Before going into the various contentions of the parties it will be profitable to refer to certain paragraphs of Ext.P11 to find out how the 10 wpc nos.38081 & 38187 of 2010 Government approached the matter. In internal page 4 in the second paragraph it is recorded like this: “While considering the arguments and findings of the District Educational Officer, it is seen that the whole prosecution witnesses were not questioned but only selected witnesses were questioned. The reason is unknown. The charges levelled against the petitioner were not so grave to impose a severe punishment like removal from service. The enquiry officer reported that allegations “appears to be true” in some findings. (eg.d, e, g)” In the next paragraph also, certain comments have been made which are reproduced below: “Besides, there were contradictions and deviations in the depositions and running statements of certain witnesses (eg: PW2, PW4, PW5 and PW9). In the circumstance it is seen that the enquiry conducted by the District Educational Officer (even though on 3 dates) is vitiated and not on fair means. Moreover, the statements “appears to be true” shows that the enquiry and the reports are vitiated.” The operative portion of the order reads as follows: “It is evident that the enquiry was conducted violating directions of the Hon'ble High Court and violating the rules and procedures. The enquiry report is drawing without observing the mandatory requirements. Relevant witnesses were not examined and the evidence of the witnesses examined are not properly wpc nos.38081 & 38187 of 2010 11 evaluated. Unwanted remarks and recommendations were seen made. The findings on the charges are not supported by the sufficient reasons. Hence it is an injustice to impose a severe punishment like removal from service. It is also to be noted that the petitioner is at the verge of retirement. In these circumstances, Government found that by considering the revision petition before Government (Ext.P7) the order issued against the petitioner by the manager and the Department need to be reviewed. In the above circumstances Government found that the punishment of removal from service is a severe punishment imposed by the manager compared to the gravity of the charges levelled against the petitioner. The removal from service is not proportionate with the gravity of the offence committed by her Hence taking a lenient view Government are pleased to reduce the punishment imposed upon. Smt. Rani P. John such that she should be reinstated forthwith and a punishment of barring of increment for two years with cumulative effect is imposed. The period under suspension shall be regularised as duty for the limited purpose of pension, and pay and allowances will be limited to that of subsistence allowance.” 13. The crucial findings of the Government in the said order, if cataloged, will be as follows: (a) All prosecution witnesses were not questioned; (b) The charges were not so grave to impose a severe punishment like removal from service; (c) There were contradictions and deviations in the depositions and running statements of certain witnesses; wpc nos.38081 & 38187 of 2010 12 In view of the same, the enquiry conducted by the District Educational Officer is vitiated and not on fair means; (d) The enquiry was conducted violating the directions of this Court and violating the rules and procedures; (e) The enquiry report is drawn without observing the mandatory requirements: (f) The relevant witnesses were not examined and the evidence of the witnesses examined are not properly evaluated: (g) Unwanted remarks and recommendations were seen made: (h) The findings on the charges are not supported by sufficient reasons. Hence, it is an injustice to impose a severe punishment like removal from service; (i) The fifth respondent is at the verge of retirement; (j) Removal from service is not proportionate with the gravity of offence committed by the fifth respondent. 14. Both sides argued elaborately on the sufficiency of the charges, findings in the enquiry report, details of the enquiry conducted and the related aspects. Learned Senior Counsel Shri Abraham Vakkanal and learned counsel appearing for the fifth respondent Shri Sajjad took me to the various details in the enquiry report, the contents of the charges, etc. etc. 15. As far as the jurisdiction of this Court under Article 226 of the Constitution of India is concerned, obviously this Court cannot exercise the wpc nos.38081 & 38187 of 2010 13 jurisdiction as in an appeal from the enquiry proceedings. The power of this Court is very limited. This Court cannot reappreciate the evidence in a matter like this and enter on conclusions accordingly. Therefore, even though learned counsel for the fifth respondent tried to persuade me to go through the details of the findings, and the sustainability of the findings of the enquiry report, in the light of the fact that this Court cannot re-evaluate the evidence and enter into findings accordingly, I refrain from doing so. The learned counsel for the fifth respondent tried to support the order, by his elaborate submission on merits. It was submitted that there is gross violation of natural justice also. 16. A reading of the order passed by the Government in Ext.P11 will surely and definitely show that none of the conclusions arrived at are supported by cogent reasons. For example, the finding that the enquiry was conducted violating the directions of this Court and violating the rules and procedure, is not supported by any reason, and how the conclusion has been arrived at, is not discernible from a reading of the order. The reference is to the judgment Ext,P2 in the Writ Appeal, contended the learned counsel for the fifth respondent. When the view taken is that there is a violation of the direction issued by this Court, it was incumbent on the Government to enter findings on an analysis of the facts and details of the manner of conduct of wpc nos.38081 & 38187 of 2010 14 the enquiry and the judgment of this Court Ext.P2, so as to elaborate the same. That was not obviously attempted. The rules which are stated to have been violated while conducting the enquiry, are not at all evident from the findings. Learned counsel appearing for the fifth respondent submitted that going by the judgment of the Division Bench, Ext.P2, the management should have furnished the copies of all the documents relied on and the documents asked for by the fifth respondent which were never supplied. Learned Senior Counsel for the petitioner submitted that the documents produced along with the reply affidavit, like Ext.P12 covering letter forwarding 16 documents followed by Ext.P13 letter as well as the reply given by the fifth respondent as Ext.P14 and the further correspondence, viz. Exts.P15 to P18 will show that this is a case where there is total non cooperation on the part of the fifth respondent to utilise the opportunities furnished. It is submitted by the learned Senior Counsel that actually opportunities were allowed to the fifth respondent, but she was only attempting to postpone the completion of the enquiry. This allegation is stoutly denied by the learned counsel for the fifth respondent and my attention was invited to various details to show that the required documents were never supplied. But this Court will not be justified in entering a finding on this aspect, as the order Ext.P11 is not supported by any reasons wpc nos.38081 & 38187 of 2010 15 for its conclusion, as already found. Similarly, all the other findings rendered are without supportive reasons. Learned Govt. Pleader tried to explain that the cumulative effect of all the violations led to the Government in entering on such findings. 17. But in a matter like this, where the disciplinary proceedings culminated in the punishment of dismissal from service and when the Government found that the gravity of the charges do not require such a punishment, it was incumbent on the Government to state reasons in support of the said conclusion. Any order passed by an authority which is unsupported by cogent reasons itself will not serve the ends of justice. 18. One of the reasons attributed by the Government is that the whole prosecution witnesses were not examined and only some of the witnesses were questioned. How this has affected the enquiry or vitiated the proceedings of the enquiry officer and the Management, is not explained. It is submitted by the learned Senior Counsel that there is no rule that all the witnesses cited should be examined. With regard to the alleged contradictions and deviations in the depositions, in respect of witness Nos.2, 4, 5, 8 and 9 also, nothing is discussed in Ext.P11. 19. In that view of the matter, I am satisfied that the order Ext.P11 passed by the Government is not supported by sufficient reasons. The 16 wpc nos.38081 & 38187 of 2010 matter will have to be reheard by the Government itself after giving opportunities to both parties to elaborate their contentions. In the writ petition, the petitioner has taken various grounds in support of their pleas and the fifth respondent in her counter affidavit, has elaborated her contentions by reference to various aspects of the matter. 20. The legal aspects argued by the learned Senior Counsel for the petitioner are that the jurisdiction in an appeal and revision are distinct and the revisional power does not extend to reappreciation of evidence. These are projected in the light of the decisions of the Apex Court in C **harin Abdulla's case** (AIR 1965 SC 1586) and **Santoksh Singh's case** {(1995) 4 SCC 201}. The decision of the Apex Court in **George Philip's case** {(2006) 13 SCC 1}, especially para 11 was relied upon to contend that the scope of judicial review in matters like disciplinary action, is very limited. It was argued that punishment imposed by the management normally cannot be substituted. The decision of the Apex Court in **Mahindra and Mahindra's case** {(2005) 3 SCC 134} was relied upon to contend that the use of abusive language against the superior officer invites maximum punishment. Similarly, **Goparaju Sri Prabhakara Hari Babu's case** {(2008) 5 SCC 569} also was referred to to contend that the punishment cannot be altered by extending sympathy or sentiments. The decisions of wpc nos.38081 & 38187 of 2010 17 the Apex Court in **The Ahmedabad St. Xavier's College Society and another v. State of Gujarat and another** {(1974) 1 SCC 717), **The All Saints High School etc. etc. v. The Government of Andhra Pradesh and others** (AIR 1980 SC 1042) and **Lilly Kurian's case** {(1997) 2 SCC 240} were relied upon in the context of the right of a minority community to manage its institutions in terms of Article 30(1) of the Constitution of India. 21. The meaning of the term 'misconduct' explained in **Ram Singh Ex. Constable's case** (AIR 1992 SC 2188) in para 5, was relied upon in the context of sufficiency of the charges to support the punishment of dismissal from service. The decision of the Apex Court in **Nemi Chand Nalwaya's case** (2011 (4) SCALE) also, was relied upon in that context. The scope of the principles of natural justice in disciplinary proceedings as explained by the Apex Court in **Ram Chandra Yadav's case** {(2000) 9 SCC 327} was relied upon to contend that the principles were fully complied with herein by the enquiry officer. It is further pointed out by the learned Senior Counsel Shri Abraham Vakkanal that the orders of the Deputy Director and the Director of Public Instruction were passed after going through the various judgments and after satisfying that there is no violation of the principles of natural justice. The learned counsel for the fifth respondent and the learned Government Pleader submitted that the wpc nos.38081 & 38187 of 2010 18 detailed analysis of the background of the action and the evidence adduced will show that the entire action is ill-motivated. It is submitted that the decisions cited are distinguishable on the facts of the present case. 22. I am not proposing to discuss the principles therein in the light of the fact that the matter will have to be considered by the Government afresh. In this context, learned counsel for the fifth respondent submitted that in the judgment in W.P.(C) NO.33610/2008 which is a writ petition filed by the fifth respondent challenging the enquiry report, this Court had expressed the view that the remedy of the fifth respondent will be to challenge the punishment under Rule 92 of Chapter XIV-A of K.E.R. and the Division Bench in W.A. No.2393/2008 has also affirmed the said view. Therefore, it is submitted by learned counsel for the fifth respondent Shri Sajjad that Rule 92 alone is the remedy of the fifth respondent. Regarding the scope of the power under Rule 92, learned counsel submitted that express power is conferred on the Government even to interfere with the penalty and therefore the Government can exercise the said power to alter the punishment on the facts of various cases. 23. Learned Senior Counsel for the petitioner vehemently contended that the order of the Government will have to go, as the same is vitiated by non application of mind and other factors. Learned counsel for the fifth 19 wpc nos.38081 & 38187 of 2010 respondent and learned Govt. Pleader alternatively submitted that if this Court finds that the order is not one properly passed, the matter will have to be directed to be reheard. Shri Abraham Vakkanal opposed the said plea. After considering various aspects, I am of the view that the order Ext.P11 cannot survive, in that, the conclusions arrived at by the Government are not supported by cogent reasons. In that view of the matter, the revision petition will have to be reheard by the Government afresh with notice to both parties. It is upto the Government to consider the various pleas of both parties. 24. Therefore, W.P.(C) No.38081/2010 is allowed. Ext.P11 is quashed to the extent noted above. The revision petition filed by the fifth respondent will be reheard by the Government after allowing the parties, a fresh opportunity of hearing. Fresh orders will be passed within a period of four months from the date of receipt of a copy of this judgment. W.P.(C) No.38187/2010 is disposed of in the light of the above direction. No costs. ## **T.R. Ramachandran Nair, Judge.)** ## **kav/**